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FOI Advisory Council Opinion AO-07-18

AO-07-18

August 9, 2018

Dewi Cardenas
Alexandria, Virginia

The staff of the Freedom of Information Advisory Council is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your electronic mail messages dated July 10, 2018.

Dear Ms. Cardenas:

You have asked for an advisory opinion regarding certain records requested from the Board of Pharmacy (Board) pursuant to the Freedom of Information Act (FOIA).

Questions Presented

You have asked whether the Board may withhold application forms for medical cannabis pharmaceutical processor permits pursuant to § 54.1-108 of the Code of Virginia. You have also asked who makes the decision that this particular information is confidential or not subject to the disclosure provisions of FOIA. Finally, you have expressed concerns regarding the permitting process of such permits and have asked for an opinion regarding those concerns.

Factual Background

On June 8, 2018, you submitted a request for records pursuant to FOIA to the Board's FOIA Officer. In that request, you asked the Board for all application forms for medical cannabis pharmaceutical processor permits submitted by the deadline of 2:00 p.m. ET on June 8, 2018. The Board responded on June 18, 2018, stating that the records are treated as confidential information and exempt from FOIA pursuant to § 54.1-108 and that the records would not be provided.

Applicable Law and Discussion

FOIA provides that all public records shall be open to citizens of the Commonwealth except as otherwise specifically provided by law.1 Section 54.1-108 states that "Applications for admission to examinations or for licensure, certification, registration, or permitting and the scoring records maintained by any board or by the [Department of Professional and Occupational Regulation or the Department of Health Professions] on individuals or applicants" are exempt from the disclosure provisions of FOIA. The legislature has therefore decided that these types of records are not subject to the disclosure provisions of FOIA and provided for this in § 54.1-108.2

Disclosure of the records you have requested is therefore governed by § 54.1-108 as they are copies of applications for permits for medical cannabis pharmaceutical processor as part of the application and permitting processes for the Board under the Department of Health Professions.3 It therefore appears that the records were properly withheld pursuant to that exemption on the basis of the given facts.

You have also expressed various concerns regarding the policies behind the particular permitting process for medical cannabis pharmaceutical processors. The Virginia Freedom of Information Advisory Council has the authority to furnish advisory opinions regarding the application and interpretation of FOIA. To the extent that your questions involve policy issues of particular permits and regulations under the Board and the Department of Health Professions, it is outside the scope and authority of this office to offer an opinion.

Conclusion

The General Assembly made the decision to exempt certain records maintained by particular boards and the Department of Health Professions from the disclosure requirements of FOIA and codified that language in § 54.1-108. Application forms for medical cannabis pharmaceutical processor permits clearly fall under the exemption provisions of § 54.1-108 as involving the application and permitting process of a board within the Department of Health Professions. The records were therefore properly withheld on the basis of the given facts.

With regard to your questions relating to the policy issues of particular permits and regulations under the Board and the Department of Health Professions, it is outside the scope and authority of this office to offer an opinion.

Thank you for contacting this office. We hope that we have been of assistance.

Sincerely,

Chad M. Ayers
Attorney

Alan Gernhardt
Executive Director

1r§ 2.2-3704 of the Code of Virginia.2Note that subdivision 2 of § 54.1-108, which governs the records you requested, allows the Department of Health Professions or the Board to make the records available for copying by the subject individual or applicant. That does not appear to be the case in this situation, however, since you are requesting permit applications for which you are not the subject individual or applicant.3See § 54.1-2503 (stating that the Board of Pharmacy is included in Title 54.1 within the Department of Health Professions).See also Freedom of Information Advisory Opinion 26 (2004) (discussing the statutory discretion of the Virginia Board of Bar Examiners in deciding whether to release bar examination scores pursuant to § 54.1-108).